There has been a wave of celebrity lawsuits against game companies over in-game dance moves allegedly made famous by the celebrity. A number of legal theories have been tried, including trademark, copyright, right of publicity, misappropriation of likeness, etc. Nearly all of these claims have failed. A recent decision from the Eastern District of Pennsylvania granted a motion to dismiss on seven of eight counts brought. The sole surviving count relates to a false endorsement claim under the Lanham Act. Leo P made two claims under the Lanham Act, the second being for false designation of origin was dismissed by the court.
The plaintiff, Leo Pellegrino, is a saxophone player publicly known as “Leo P.” He alleges that he is known for his unique style, including how he dances while performing. In the lawsuit, he claims that an in-game dance where the avatar pulls out a saxophone and performs a similar style of dance while playing it, constitutes a false endorsement.
A claim of false endorsement, in general, focuses on whether the defendant’s alleged conduct is “likely to create confusion concerning the plaintiff’s sponsorship or approval of those good[s] or services.” The primary focus of the claim of false endorsement here is the alleged use of Leo P’s likeness and trademark as constituting an endorsement. Although the in-game dance does not specifically reference the plaintiff, because of the allegedly strong association between his public image and this style of dance, he argues that an endorsement can be implied.
In its motion to dismiss, the defendant relied on the same piece of precedent, Dastar Corporation v. Twentieth Century Fox Film Corporation, to argue against both Lanham Act claims. While the court agreed with the defendant that Dastar barred the claim for false designation of origin, it disagreed that Dastar barred the claim of false endorsement.
In Dastar, the Supreme Court analyzed “the phrase ‘origin of goods’ for purposes of the Lanham Act in order to distinguish between trademark claims that could be brought under the Lanham Act and claims that were governed exclusively by the Copyright Act.” The Supreme Court in Dastar concluded that ‘origin’ under the Lanham Act referred to the manufacturer of a good, not the idea behind the good.
The reliance on the same precedent as barring both Lanham Act claims was ultimately why the claim of false endorsement survived. The court agreed that Dastar barred the claim of false designation of origination, because in-game items, including the dance, clearly originate from the game maker. As this reasoning has no bearing on the claim of false endorsement, the court did not dismiss the claim. The court’s discussion was focused entirely on the form of the argument, not its conclusion.
As the court did not address the substance of the false endorsement claim, it provides little insight as to how the parties may fair going forward. Given how many cases share similar facts to this case, others who have allegedly had their dance moves used in popular games will be keeping a close eye on this case.